In mortgagee's action against mortgagor for conversion of mortgaged property, return of officer showing levy on certain property of the same character as that described in the mortgage and a notice of sheriff's sale of the property described in the levy were inadmissible to prove mortgaged property in existence, in absence of an offer to show the property levied on was the same as that mortgaged, and in the absence of a showing that the officer found the property levied upon.

7. Appeal and error 1078 (4)-Objection to evidence waived by failure to rely thereon in discussion of exception.

Objection to evidence not relied upon in discussion of exception must be taken to have been waived.

8. New trial 30-Verdict influenced by irresponsive answer intentionally given set aside.

When it appears to the court that answers not responsive to the questions are given intentionally to gain advantage, and that the verdict has been influenced thereby, it is the duty of the court on proper motion to set the verdict aside.

11. Chatte! mortgages 176(6) Recovery of punitive damages in mortgagee's action for conversion of mortgaged property held for the jury.

In mortgagee's action against mortgagor for conversion of mortgaged property, evidence held sufficient for submission to jury of whether mortgagor had acted in reckless and wanton disregard of mortgagee's rights so as to entitle mortgagee to punitive damages.

113(2)—Evidence as to value of property at time of mortgage admissible to prove value at time of conversion.

In mortgagee's action against mortgagor for conversion during the fall and winter of property covered by mortgage executed in October, evidence as to the value of the property at the time of the execution of mortgage was not too remote to prove value at time of conversion.

TAYLOR, J. The action is tort for the alleged conversion of articles of personal property mortgaged by the defendant to the plaintiff. The trial was by jury with verdict and judgment for the plaintiff. The case is here on defendant's exceptions.

The defendant is a brother-in-law of the plaintiff, having, at the time the mortgage was given, lately married the plaintiff's sister. He then lived at Richmond, Vt., but owned a farm in the town of Essex, where much of the mortgaged property was situated, and to which he removed soon after the mortgage was executed. The mortgage bears date October 16, 1914, and was given to secure the payment of a note of $975 and interest payable on or before one year from that date. No part of the note has been paid. The property mortgaged is described as follows:

"One suckling colt; one 7% horse power motor; one grain separator; one milk separator; six brood sows; four pigs; one feed two-row corn planter; 600 bu. oats; one stack grinder; one P. K. cutter and blower; one straw; one silo ensilage; all household furniture and furnishings."

12. Chattel mortgages 176(6) converted property held for jury.

the brood sows had died; that the other sows were butchered in the fall of 1914 for his own use; that the farm machinery was there, but was practically all worn out; that of the furniture and furnishings there were a few old things there-two or three chairsnot worth much. The officer asked the defendant to show him the things that were there, and the defendant replied, "It is your business to find them." He did nothing to assist the officer in identifying the property and the latter left without securing any of it. It did not appear that any further attempt to foreclose the mortgage was made before this suit was brought.

Certain exceptions are briefed together for convenience. The first group raises in several ways the question of the sufficiency of the description of the property. Exceptions were taken: (a) To the admission of any evidence respecting a suckling colt, on the ground that the description was insufficient; (b) to the exclusion of a question asked the defendant whether he had other swine; (c) to the refusal of a directed verdict on the ground that the description was inadequate for a valid mortgage; (d) to the charge that the mortgage was valid and binding on the parties thereto and covered the property therein described; (e) to the refusal to set aside the verdict on the ground that the mortgage was void and the description insufficient to enable the officer to find the property. The defendant recognizes, as a general proposition, that a different rule prevails where the suit is between the parties to a mortgage than where the rights of third persons are involved; but he disregards the distinction when it comes to citing cases in support of his claims.

[1, 2] It is a well-recognized general proposition that, to be sufficient against third persons having constructive notice only, the description in a chattel mortgage must be such that the property can be identified by reference to the instrument itself, aided by such inquiries as may be indicated and directed thereby. Wells v. Blodgett, 92 Vt. 330, 104 Atl. 146. But this rule is for the protection of strangers to the mortgage whose rights in the property are to be affected by constructive notice. The description may be sufficient to create a lien, and yet insufficient of itself to import a notice thereof through the record. Nussbaum v. Waterman Co., 9 Ga. App. 56, 70 S. E. 259. Generally, in treating of the sufficiency of a description in a mortgage, it is sufficiency as regards third persons who have in good faith acquired rights against the property that is referred to. Jones on Chat. Mtgs. (5th Ed.) § 53. This is true of practically all of our cases involving the sufficiency of the description in a chattel mortgage; the only exception that we now recall being National Bank of Chelsea v. Fitts, 67 Vt. 57, 30 Atl. 697. Any ap

when the distinction referred to above is noticed, and it is only by having the distinction in mind that confusion is avoided.

It was said in National Bank v. Fitts that as between the parties to a chattel mortgage the description is to be interpreted in the light of the facts known to, and in the minds of, the parties at the time; that a description which is sufficient between the parties may be utterly insufficient as against third persons; that, as between the parties, a specific and particular description is not necessary; and that, as between the parties, the mortgage need not contain a description of the several articles by which to identify them from other like articles of the mortgagor. The rule generally recognized is that, as between the mortgagor and mortgagee of personal property, as well as between the mortgagee and a person who has succeeded to the interest of the mortgagor with actual notice of the mortgage, parol testimony is admissible in aid of the description to identify the property intended to be given as security. Reinstein v. Roberts, 34 Or. 87, 55 Pac. 90, 75 Am. St. Rep. 564; Stewart v. Jacques, 77 Ga. 365, 3 S. E. 283, 4 Am. St. Rep. 86; 5 R. C. L. 429; Jones on Chattel Mortgages, § 64. Mr. Freeman says in a note to Barrett v. Fisch, 14 Am. St. Rep. 239, that a description which is amply sufficient between the parties may be utterly insufficient as against third persons; for, as between the parties, a specific and particular description is not necessary, and the mortgaged articles may be shown by parol evidence. The reference to "third persons" is evidently intended to mean persons without actual notice of the mortgage. An examination of the cases shows the general rule to be that, as between the parties, any description is good, if the parties at the time knew and understood what the mortgage covered. Cobbey on Chat. Mtgs. §§ 186, 188; Rudisell v. Jennings, 38 Ind. App. 403, 77 N. E. 959, 78 N. E. 263, where numerous cases are collected. See Northwestern Nat. Bank v. Freeman, 171 U. S. 627, 19 Sup. Ct. 36, 43 L. Ed. 308, where it is held that a mortgage of a given number of articles out of a larger number is valid against those who know the facts; Bonneviere v. Cole, 90 Wash. 526, 156 Pac. 527; Zinn v. Denver, etc., Co., 68 Colo. 274, 187 Pac. 1033; Hartford-Conn. Tr. Co. v. Puritan Laundry, 95 Conn. 172, 111 Atl. 149; Clark & Boice Lum. Co. v. Com. National Bank (Tex. Civ. App.) 200 S. W. 197; Simmons v. Carroll, 232 Mass. 428, 122 N. E. 408, note Ann. Cas. 1915D, 783; 5 R. C. L. 430. Mr. Cobbey assigns as a reason for the rule that only a party whose rights are injuriously affected can raise the objection of insufficient description. Cobbey on Chat. Mtgs. § 186. Sure it is that the law will not permit a mortgagor to escape the consequences of a conversion of mortgaged chattels by attack

[8, 9] The plaintiff was being cross-examined concerning her knowledge at the time that the defendant was feeding out and using up the oats, ensilage, and straw covered by the mortgage, and had testified that she did not know what he was doing. She was then asked, "Well, you understood, didn't you, that he should continue his farm business notwithstanding your mortgage?" and answered, "Well, I thought when he went and used this stuff he ought to have been willing to have paid me before he used it up." Defendant's counsel excepted to the answer, the court ordered it stricken out, allowed the exception, and reprimanded the witness for answering outside the question. Plaintiff's counsel claimed that the answer was responsive and saved an exception to its being stricken out. It is claimed that this incident shows reversible error. The rule applicable to such a situation is stated in Sanders v. Burnham, 91 Vt. 480, 483, 100 Atl. 905. Such matters are largely in the hands of the trial court, to be dealt with as justice may require; and, when it appears to the court that such answers are given intentionally to gain an advantage, and that the verdict has been influenced thereby, it is the duty of the court, on proper motion, to set the verdict aside. The misconduct of the plaintiff, if such it was, having been promptly and vigorously dealt with by the court, we are unable to find affirmatively any ground of reversible error. That no particular significance was attached to the incident at the time of the trial is evident from the fact that the defendant did not move to set the verdict aside as influenced thereby.

[10, 11] The propriety of permitting the jury to include punitive damages in their verdict was questioned by exceptions to argument of counsel and the court's charge, as well as by a motion to set the verdict aside. The ground of objection was that there was no evidence of malice or an intention to deprive the plaintiff of her property. As applied to this case, the test is whether there was evidence from which the jury might find that the conversion of any of the mortgaged property was in reckless and wanton disre gard of plaintiff's rights. Green v. La Clair, 89 Vt. 346, 95 Atl. 499. It is argued that the property actually converted by the defendant consisted of articles of farm produce necessarily used in carrying on the farm, referring to the grain, ensilage, straw, and hogs

to injure." But the inferences to be drawn from the evidence were not all of an innocent character. There was evidence tending to show that all of the mortgaged property, except such as had died, had been lost to the plaintiff through the defendant's wrongful acts. The bulk of it in value had been consumed without the plaintiff's knowledge or consent. The little of her security that was left, said by the defendant to be practically worthless, was wrongfully withheld from her when called for. We think the circumstances were such that the jury could properly infer that the defendant was not acting under an honest, though mistaken, belief as to his rights, but, on the contrary, in reckless and wanton disregard of the rights of the plaintiff. If they so found, they could in their discretion allow exemplary damages. Green v. La Clair, supra. The substance of the charge on the subject of punitive damages was not excepted to and is not before us for review.

Certain exceptions were taken in the course of the opening argument for the plaintiff relating to the probability of the defendant's having told the truth about the disposal of the mortgaged swine. We have examined the transcript and fail to find anything in the argument requiring a reversal.

The court gave as the measure of damages the value of the property converted at the time and place of conversion and applied the rule to the several classes of property referred to in the evidence. The charge continued:

"You should not guess or speculate as to the amount of the damages, but should decide this case upon the evidence and upon the evidence alone in respect to damages. If there is any article or articles, the plaintiff has failed to introduce evidence which will enable you to determine its value at the time of converburden is upon the plaintiff not only to show a sion, you should allow nothing for them. The conversion, but to show what the damage to

her has been from the conversion."

The defendant excepted"to the charge as given, in effect, if the plaintiff has failed to introduce evidence relating to damages, that they must not speculate. We claim that this is error, because that is a question for the court, and that the is no evidence at all tending to show what the court should have charged the jury that there value was at the time of conversion."

[12, 13] Much of the evidence respecting the value of the mortgaged property related to its value at the time the mortgage was given. All of the evidence as to value was received without objection and went to the jury without requests to charge. In the circumstances, the part of the charge to which the exception was directed was for the par